1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2003 FED App . 0294P (6th C ir.) File Name: 03a02 94p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
R OVEA IL M C K INN IE , et al., Plaintiffs- Appellant s,

v.

R OADWAY E XPRESS , I NC ., Defendant-Appellee. X

- - - -
> , - - N No. 02-3058

Appeal from the United States District Court for the Northern District of Ohio at Akron. No. 01-00901—James Gwin, District Judge.

Argued: July 31, 2003 Decided and Filed: August 18, 2003

Befor e: KENNEDY, GI

LMAN , and GI

BBONS, Circuit Judges.

_________________ COUNSEL

AR GUED: Joseph K. Grant, SAFFOLD, GRANT & MASON, Cleveland, Ohio, for Appellants. Jeremy R. Sayre, BAKER & HOSTETLER, Cleveland, Ohio, for A ppellee. ON BRI EF: Joseph K. Grant, SAFFOLD, GRANT & MASON, Clevelan

d, Ohio, f or Appel lants. Jeremy

R. Sayre, 2 McKinnie, et al. v. Roadway Express, Inc. No. 02-3058

Charles J. French II

I, BAKER & H OSTETLER, Cleveland, Ohio, for Appellee.

_________________

OPINION

_________________ KENNEDY, Circuit Judge. Plaintiffs appeal the district
co u rt’s grant of summary judgment in favor of Roadway Express, Inc., entered a

fter Plaint iff

s failed to oppose the moti on. Finding Plaintiffs’ failure is not excused , w e AFFIRM the judg ment of the

district c ourt.

I.

OnApril 13, 2 001, Rovea il McKinni e, Derr

yl M atthews, Dwayne Lopp, Anthony

Brunson, and Henry

Baddley filed suit against Roadway

Express claiming racial discrimination inviolation of Title VII

of the Civi l Rights A ct of 1964 and intentional infliction of severe emotiona l distress

. McKinnie additiona lly claimed t

hat Roadw ay

raciall y harasse d him, retaliated agains t him

for ex erc is in g hi s ri ght s un der Tit le V II, discriminated

against him and fa iled to accom modate hi s disability in violation of the America ns with Disa

bilities Ac

t.
OnMay 7, 2001, the district court ordered

that the case be entered into the court’s electronic filing system, and that a ll further document s, notice s, an d o rd er s b e f il ed el ec tr on ic al ly. The electronic filin

g s ys tem permits counsel to submit and
access documents electronically , and inform s c ounsel of filings by e

mail.

On Se ptember 7, 2001, Plaintiffs’ counsel filed a motion for leave for man dat ory withdrawa l, which the district court granted on September 13, 2001. On that same day , the dis trict court ordered that dispositive motions be filed b y October 17, 2001, with responses due o n O ctober 31 andNo. 02-3058 McKinnie, et al. v. Roadway Express, Inc. 3

1 The dist

rict court ha d refer

red the case to mediation onJune 13, 2001, apparen tl y t hroug h th e dis tri ct c ourt ’s medi at io n p ro gr am. On August 31, 2001, th e ADR a dmi nis tra tor r eport ed th at a mediation conferen ce was he ld on August 28, 2001 and the media tion pr ocess was complete. The case was r etur ned t o c hambe rs for fur ther sett lement negotiations and case processing. re p ly briefs d ue on Nove

mber 7. The trial w as tenta tively scheduled to start December 17, 2001.

OnOctober 16, 2001, the day befo re dispositive motions
were due, the district court received a letter fr om Mc Kinnie advising the cour

t that Plain

tif fs had not been a

ble to retain replacement

counsel and asking that Plaintiffs’ cl aims be remanded to the Equal Emp loy ment Oppo rtunity

Commiss io n (EEOC) for media

tion. The d

istrict c ourt d id not grant Plaintiff s’ req uest for a remand. 1 On that same day, the districtcourt exte

nded the d

eadli n e for filing dispositive motions to October 22, 2001, with re sponse s due on November 5 and reply

briefs due on November 13.

OnOctober 22, 2001, Roadway filed a motion for

summary judgmen t, which drew support from deposition testimony given by e ach of th e Pla intiffs and affidavits of Roadway personne l. Roadway ce rtified that its motion was filed el ec tr on ic al ly, that notice of the filing was to be s e nt electronically

to all parties by operation of the district court’s electronic filing system, and that all parties could access the filing th rough the court’ s sy stem.
OnNovem ber 26 , 2001 , McKi nnie, procee ding pro se , filed
a motion to stay the ca se. The district court denied the motion on November 30 and ordere d Plaintiff

s to respo nd to Roadway’s

summary judgme

nt motion by December 5 a nd encouraged

the parties to mediate their dispute. Plaintiffs do notdeny their timely

receipt of the court’s N ovember 30 order, yet they

failed to respond by D ecember 5 either on the merits of Roadway’ s motion or by requesting an extension of 4 McKinnie, et al. v. Roadway Express, Inc. No. 02-3058

time. On Dece

mb er 11, 2 001, the district court granted Roadway’s

summary

ju dgm ent mo tion in a se vente en-page opinion dealing with each Plaintiff’s claims. Roadway filed a motion for costs on December 21, 2001. OnJanuary 11, 2002, present counsel filed an appearanc e. At the costs hearing before the magistrate judge, present counsel opposed the motion on the grounds that Plaintiffs could not afford to pay costs beca

use most of them were unemploy ed and anaward of costs would discourage Plaintiffs from filing future civil rig

hts litiga tion. Plain

tiffs ag ain made no argument about not having had adequa te time to re spond to Roadw ay’s motion for summary judgme nt. On January 31, 20 0 2, the magistrate judge recommende d that the district court grant the motion fo r costs , which th e distric t court did on February

21, 2002.

Withthe assistance of counsel, Pl aintiffs filed a notice of appeal on January 11, 2002, which was fo llowed, on January 18, by a motion for extension of time to file a notice of appeal. The district court granted the extension on January 22, 2002, and this appeal followed. No appeal was filed from the awa rd of cos ts.

II.

Plaintiffs contend that the district court’s grant of summary judgme n tin favor

of Roadwa

y should be re

versed b ecause Roadway failed to serve its summary judgmen t motion in conform ity with Fed eral Civi l Procedure Rule 5(b). Plaintiffs also contend that the district court should have given them notice as to the requirements of Federal Civil Proce dure Rule 56(e), as well a s t he conse quence s of faili ng to opp ose Roadway’s

summary judgmen t motion. Th

is Co u rt reviews de novo the district court’s disposition of a motion for summary judgme

nt. Mulhall

v. Ashcr oft , 287 F.3d 543, 550 (6th Cir. 2002) . Summary

judgmen t is ap propriate where there is no genuine issue as to any material fact and theNo. 02-3058 McKinnie, et al. v. Roadway Express, Inc. 5

2 Roadwa y argues that t his Court should not reach t he merits of t

hi s clai m because th e iss ue of i nadequate s ervice was never presented to the district court. Plaint iff

s did not raise t

he is sue i n a Rul e 59 motion t o alter

or ame nd o r in a Ru le 60(b) mot ion f or rel ief fr om judgment, nor did t hey raise th e issu e in their oppo sition to Road way’s motion for co sts. Ro adw ay, however, does not point t o any precedent dismis sing an appeal such as th is on t

he ground t

hat the cl ai m was never presented to the district co urt. moving party

is entitle d to judgment

as a matter of law. Fed. R. Civ. P. 56(c). Materia

l facts a re those facts defined by the substantive law and

that are necessa ry to apply it. Anderson

v. Liberty Lobb

y , 477 U.S . 242, 248 (1986). While a court must draw all inferences in a light

most favorable to the nonmoving party , it

may g rant summary

judgment if the record, taken as a whole, could not lead a rational trier of fa ct to find for that party. Matusushi ta Elec. I ndus. Co. v

. Zenith Ra dio Corp. , 475 U.S. 574, 587 (1986).

A.

Plaintiffs contend that the district court’s grant of summary judgment in favor of Roadway

should be reve r sed beca use Roadway failed to serve its s ummary

judgmen t motion in conformance with Fed

eral Civil Procedure Rule 5(b). Roadway argue s that eve

n if Pla in tiffs we

re not se rved in accordancewith Rule

5(b), the district c ourt’s de cision must be aff irmed be cause Pla

intiffs ha ve faile d to prese

nt a n y evidence that Roadway

is not entitled to summary judgmen t. 2

Plaintiff s’ counsel consented

to participationin the district court’s electronic filing

sys tem. Electronic service, however,
was inadequa

te once Pl aintiffs ’ counse l wit hdrew. Thus, Roadw a y’ssummary judgme nt motion was not served on Plaintiffs in conformity with Rule 5(b).

The vi ol ation of Rule 5(b), however, does not provide a sufficient basis to reverse the di strict court’s summary 6 McKinnie, et al. v. Roadway Express, Inc. No. 02-3058

judgment because Plaintiffs had actual notice th at the summary judgment motion had

been filed. I n their a ppellate brie f, Plaintiffs admit that they learned tha t “Roadway ha

d filed for summary judg

men t some time in December, after they had rec eived the

district c ourt’s O rd er dated November

30, 2001, informing the Appellan ts that they

must respond to Roadway’s motion.” I n three unreported cases where a non-mov

ing par ty has attempted to excuse his or her failure to oppose a summary judg ment motion on the ground that the non-moving party

did not receive a c op y o f the motion, the Sixth

Circuit has affirmed a district court’s gra nt of summary judgme

nt whenthe non-moving party has failed to demonstrate on appeal that the existence of a genuine issue of material fact precluded summary judgment. See L’Bert v. West , 2001 WL 11450734 (6th Cir. O ct. 30, 2001) (un p ublished) (affirming summary judgment in favor of defendant even though plaintiff claimed to have not

received notice of motion b ecause

nothing in the record established the existence of gen

uine is sue of mater

ial fact ); Shy v. Bh att , 199 0 WL 115854 (6th Cir. Aug. 9, 1990) (unpublished) (affirming

summary judgme

nt in favor of defendant prison officia ls even though pro se

pr ison er claimed to have never received motion because pl ainti ff had not raised any argument
o n appeal establishing the existence of a ge nuine issue o f material fact); Person v

. Norris , 1990 WL 75250 (6th Cir. June 6, 1990) (unpublished) (affirming summary judgment agains t pro se

prisoner even thou

gh prisoner cla

imed to have notreceived notice o f motion because prisoner had not demonstrated

that he could have produced any evidence that

w ould have required the district court to change its decision on the merits).

If revers al is not ap

propria te when the compla

in ing party d id not rece ive a pro

perly served motion and o stensi bly di d nothave ac tual k nowle dge tha t the m otio n was p endin g, reversal can hardly

be appropriate when a p ar ty has actual knowl edge of a pending motion de spite leg ally

inadequa te service. Consequently, we hold that when a party is notNo. 02-3058 McKinnie, et al. v. Roadway Express, Inc. 7

properl y served b

ut nonethe less has a

ctu al no tice of a summary judgment motion prior

to its disposition, the district
cour t’s summary judgm ent deci sion should be affi rmed unle ss the party who fa

iled to oppose the motion d emon strates on appeal that the existence of a g enuin e issue of material fact precludes summary judgme nt as a matte

r of law. Becau se Plai ntiffs had actual notice of Roadway ’s pending summary judgment motion and Plaintiffs have not demonstrated on ap peal t hat a ge

nuine issue of mate

rial fac t existed for trial,
we affi rm the dist

rict cou rt’s gr ant of sum

mary judgmen t to Roadway for the r easons st at ed in its order filed December 11, 2001.

B.

Plaintiffs also contend that the district court should have given them notice as to the requiremen ts of Fed eral Civi l Procedure Rule 56(e), as well as the consequences of failing to oppose Roadway’ s summary judgment

motion. Ordinary civil liti gants p roceed ing pro se, however, are not entitled t o sp ecial treatment, including assistance in rega rd s t o responding to depositive motions. Brock v . Hender shott , 840 F.2d 339, 343 (6th Cir. 1988). “Apanel of this Court cannot overrul e the deci sion of an other pa nel. The prior decision remains controlling authority unless an inconsistent decision of the United States Supreme Court requires modification of the decision or this Court sitting en banc overrules the prior decision.” Salmi v. S

ec’y of Health &

Human Se

rvs. , 774 F.2 d 685, 689 (6th Cir. 1 985); see also 6th Cir. Rule 206(c) (stating that a published p anel opin ion is bindin

g on all subsequent

pan e ls). Thus, the distri ct court did not hav e to notify Plaintiffs of the requirements of Rule 56(e) or inform Plaintiffs of

the consequences of failing to oppose Roadway ’s summary judgme

nt motion. 8 McKinnie, et al. v. Roadway Express, Inc. No. 02-3058

III.

Becau se Plaintiffs had actual notice of Roadway’ s pending summary judgmen

t motion and

Plaintiff

s h ave not demonstrated

on appeal that a genuine issue of materia l fact existed for trial, we affi rm the d istrict court’s grant of summary judgment to Roadway . We further hold the y did nothave to notify

Plaintiff s of the r equirem ents of Rule 56(e)
or informPlaintiffs of the consequences of failing to oppose Roadway’s summary

judgment motion.